Eliz­a­beth Gon­za­les

To­ba­go Cor­re­spon­dent

A mul­ti-mil­lion-dol­lar le­gal bat­tle is brew­ing be­tween the To­ba­go House of As­sem­bly (THA) and Warn­er Con­struc­tion and San­i­ta­tion Lim­it­ed (WC­SL) over the is­land’s 2019-2021 Road Resur­fac­ing Pro­gramme.

WC­SL, owned by Al­lan Warn­er, took the THA to court ear­li­er this year seek­ing ap­prox­i­mate­ly $46 mil­lion in out­stand­ing pay­ments al­leged­ly owed for works done as part of the road pro­gramme.

How­ev­er, in a coun­ter­suit on No­vem­ber 25, the THA is­sued a pre-ac­tion pro­to­col let­ter de­mand­ing that Warn­er WC­SL and its own­er re­pay $66.9 mil­lion.

WC­SL’s claim is be­fore the courts and is sub ju­dice, but Guardian Me­dia ob­tained a copy of the THA’s pre-ac­tion pro­to­col let­ter to Warn­er and WC­SL.

In re­sponse to the THA’s claims, Alan Warn­er said: “I find it strange a mat­ter of such sim­plic­i­ty took the THA al­most three years to in­ves­ti­gate and is­sue a pre-ac­tion pro­to­col let­ter. I find it strange know­ing that the mat­ter is be­fore the court and it has been al­lowed in­to the pub­lic in the pa­pers. I seem to re­call that there is an elec­tion com­ing and the THA’s pop­u­lar­i­ty in To­ba­go is at its low­est point. And, there­fore, a tar­get is need­ed.”

In the pre-ac­tion pro­to­col let­ter, the THA ac­cused Warn­er Con­struc­tion of gross fi­nan­cial mis­con­duct dur­ing the 2019-2021 Road Resur­fac­ing Pro­gramme lead­ing up to the 2021 De­cem­ber 6 THA elec­tions.

The al­le­ga­tions are based on a foren­sic au­dit con­duct­ed by Trinidad-based Caribbean In­sti­tute of Foren­sic Ac­count­ing (CIFA).

Ac­cord­ing to CIFA’s au­dit, Warn­er Con­struc­tion re­ceived $121.4 mil­lion for the Emer­gency Restora­tion Works Pro­gramme, Road Restora­tion Pro­gramme, Road Resur­fac­ing Pro­gramme, Dis­burse­ment to the Cap­i­tal Grants Pro­gramme, and Emer­gency Grant Works be­tween Oc­to­ber 1, 2019, and No­vem­ber 30, 2021.

The au­dit flagged at least $66.9 mil­lion for what it called, non-ex­is­tent roads, in­com­plete work and over­priced con­tracts.

The THA stat­ed that it was giv­ing Warn­er Con­struc­tion the op­tion to re­pay the $66.9 mil­lion or pro­duce al­leged miss­ing doc­u­men­ta­tion and prove all work was com­plet­ed. Warn­er Con­struc­tion has been giv­en un­til Jan­u­ary 3, 2025, to re­spond. The THA said it will seek in­ter­est, le­gal costs, and dam­ages should le­gal pro­ceed­ings be­come nec­es­sary.

Warn­er Con­struc­tion con­firmed that the THA is­sued a le­gal let­ter, but de­clined to com­ment fur­ther.

“In sum­ma­ry, the In­de­pen­dent Au­dit re­veals that at least TT$66.89 mil­lion has been paid to you un­der un­law­ful and sham con­tracts which con­tain gross­ly in­flat­ed prices. These pur­port­ed con­tracts were all sup­pos­ed­ly en­tered by you and the for­mer ad­min­is­tra­tion of the As­sem­bly. Crit­i­cal­ly, none of these pur­port­ed con­tracts had Cen­tral Ten­ders Board ap­proval, as re­quired by the Cen­tral Ten­ders Board Act, Chap­ter 71:91. Ac­cord­ing­ly, they are each void and of no ef­fect.

“The In­de­pen­dent Au­dit and fur­ther in­ves­ti­ga­tion have al­so un­cov­ered sub­stan­tial ev­i­dence that you were in­volved in oth­er wrong­ful con­duct (in­clud­ing fraud­u­lent con­duct). Fur­ther or al­ter­na­tive­ly to the claim above, the As­sem­bly has claims against you for un­law­ful means con­spir­a­cy, de­ceit, dis­hon­est as­sis­tance of breach of fidu­cia­ry du­ty, know­ing re­ceipt, fraud­u­lent mis­rep­re­sen­ta­tion, and breach of con­tract,” the let­ter stat­ed.

The THA claimed that WC­SL sub­mit­ted in­flat­ed in­voic­es with prices “far ex­ceed­ing stan­dard in­dus­try rates.” The CIFA foren­sic au­dit re­port­ed in­stances where 80 project costs were marked up by as much as 77 per cent to 87 per cent.

CIFA au­di­tors con­duct­ed site in­spec­tions and wrote: “Specif­i­cal­ly, as many as eight of the roads as­signed to you, which are all roads you sub­mit­ted quo­ta­tions for, ap­pear to be com­plete­ly fic­ti­tious.

“The in­de­pen­dent au­dit has dis­cov­ered that you sub­mit­ted in­voic­es, and some­times re­ceived pay­ments, for projects where you un­der­took no work, or you had not sub­stan­tial­ly com­plet­ed work. For ex­am­ple, on at least nine roads, site in­spec­tions re­vealed no work at all and sub­stan­tial­ly in­com­plete work on a fur­ther 16 roads.”

The THA, cit­ing the au­dit, fur­ther claimed that some con­tracts were signed retroac­tive­ly “to cre­ate the il­lu­sion of due process.”

Warn­er: We are the scape­goats

In a fur­ther re­sponse to the le­gal let­ter, Warn­er said: “It got worse when the THA Act, they (THA) messed it up by send­ing doc­u­ments to the Prime Min­is­ter and the Op­po­si­tion Leader the night be­fore. That was messed up by them. So what can they do to drum up peo­ple? Warn­ers. The Warn­ers are the scape­goat. And those are al­le­ga­tions that will be re­solved in the courts.

“But we can com­ment on the tim­ing of it all. What is un­for­tu­nate about it is To­ba­go over the years, To­ba­go built and bred black To­ba­go con­trac­tors. In To­ba­go, there were no black con­trac­tors and un­der the PNM that changed. To­ba­go was a jump­ing point for the black man, where the busi­ness in To­ba­go was al­ways con­trolled by black peo­ple.

“Far­ley de­stroyed that. And un­der To­ba­go, no Trinida­di­an con­trac­tors were com­ing in. Un­der Far­ley, he changed that. I re­cent­ly came from Africa, there seems to be world­wide, in­clud­ing Africa, a prob­lem with the black tribe world­wide find­ing a place in the eco­nom­ic space world­wide. To­ba­go was an ex­am­ple. The mon­ey stayed in To­ba­go. Far­ley de­stroyed that. It is un­for­tu­nate that he lacks the con­scious­ness to un­der­stand the dam­age he has done. He has car­ried it to an­oth­er lev­el to try and de­stroy one of the shin­ing lights of the black com­mu­ni­ty.”

THA sources: Au­dit sent to TTPS

THA sources con­firmed that in March 2023 copies of the au­dit were sent to Po­lice Com­mis­sion­er Er­la Hare­wood-Christo­pher, Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) Roger Gas­pard and sev­er­al units with­in the TTPS, in­clud­ing the Fi­nan­cial In­tel­li­gence Unit, the Fraud Squad and the An­ti-Cor­rup­tion Bu­reau.

At­tempts to con­firm this with the TTPS’ Com­mu­ni­ca­tions Unit were un­suc­cess­ful.

The let­ters sent to the TTPS claimed there were dis­crep­an­cies be­tween the es­ti­mat­ed costs for the pro­gramme.

De­part­ment of In­fra­struc­ture, Quar­ries and Ur­ban De­vel­op­ment (DIQUD) en­gi­neers es­ti­mat­ed an av­er­age of $848.14 per square me­ter for resur­fac­ing, while in­de­pen­dent ex­perts cal­cu­lat­ed the cost at $700 per square me­ter. The dif­fer­ence point­ed to a po­ten­tial over­charge of around $32 mil­lion, the au­dit claimed.

The THA al­so al­leged that DIQUD over­es­ti­mat­ed the amount of as­phalt re­quired for the project by as much as 53 per cent and that no work was done on 14 roads, de­spite in­voic­es be­ing sub­mit­ted and ap­proved for pay­ment.

It claimed that one con­trac­tor in­voiced near­ly $10 mil­lion for work on four of these roads al­though no pay­ments were made. The con­trac­tor was al­leged­ly found to owe the THA $12.4 mil­lion for over­pay­ments made on oth­er projects. An­oth­er con­trac­tor was al­leged­ly found to owe the As­sem­bly $10.3 mil­lion for over­pay­ments.

THA sources said Fraud Squad and An­ti-Cor­rup­tion Bu­reau of­fi­cers sent a list of ques­tions to the THA for clar­i­ty in its in­ves­ti­ga­tion.

Guardian Me­dia con­firmed that the THA’s le­gal team is prepar­ing re­spons­es to their ques­tions.

Au­dit claims THA col­lu­sion

The le­gal let­ter sent to WC­SL claims to have ev­i­dence, based on the au­dit, that Warn­er Con­struc­tion’s con­tract bids matched con­fi­den­tial in­ter­nal THA cost es­ti­mates.

The pre-ac­tion let­ter stat­ed: “Con­tracts pur­port­ed­ly award­ed to you were near­ly 100 per cent rec­on­cil­able with high­ly con­fi­den­tial in­ter­nal es­ti­mates . . . The on­ly ex­pla­na­tion for this un­nat­ur­al align­ment is that you col­lud­ed with As­sem­bly per­son­nel to ma­nip­u­late the pro­cure­ment process.

“This col­lu­sion ap­pears to have in­volved the sub­mis­sion of in­voic­es that mis­rep­re­sent­ed (a) the ex­is­tence of roads, (b) the ex­is­tence of work, and (c) the cost of that work, cou­pled with fal­si­fied com­ple­tion re­ports from As­sem­bly staff of which you were aware.”

The THA fur­ther claimed that Warn­er Con­struc­tion ex­ploit­ed pro­cure­ment loop­holes dur­ing COVID-19 to se­cure in­flat­ed con­tracts.

The pre-ac­tion pro­to­col let­ter al­leged an ab­sence of es­sen­tial project doc­u­men­ta­tion. Au­di­tors found that many con­tracts did not have de­sign plans, bills of quan­ti­ties and work scopes “that should have been pro­duced in any le­git­i­mate pro­cure­ment process.”

Warn­er’s le­gal trou­bles

In a sep­a­rate case, five com­pa­nies from the Warn­er Group, in­clud­ing Warn­er Con­struc­tion and San­i­ta­tion Ltd, are ac­cused of il­le­gal quar­ry­ing. The po­lice seized ex­pen­sive equip­ment from their Waller­field plant dur­ing an in­ves­ti­ga­tion and the com­pa­nies are now fight­ing in court to have the equip­ment re­turned.

At a hear­ing on No­vem­ber 11, a judge was told the case had en­coun­tered de­lays be­cause lawyers were still gath­er­ing ev­i­dence and wit­ness­es, in­clud­ing a key of­fi­cial from the En­vi­ron­men­tal Man­age­ment Au­thor­i­ty (EMA). The judge set the next court date for Jan­u­ary 14, giv­ing every­one more time to pre­pare.

Al­lan Warn­er, his son Aluko, and 11 oth­ers charged with il­le­gal quar­ry­ing in two po­lice op­er­a­tions ear­li­er this year are cur­rent­ly out on bail.